The Right of First Refusal as it Applies to the Society’s Most Valued Commodity…Children

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In the business world, the Right of First Refusal is a contractual right that gives its holder the option to enter into a business transaction with the owner of something, before the owner may enter into that transaction with a third party. This concept is also commonly found in child custody agreements between parents when negotiating the terms of a shared timeshare agreement involving their minor children. The more hotly contested the custody matter, the more likely the parties may disagree about Right of First Refusal language.

Absent any threat to a child’s health, safety or welfare, California public policy favors custody arrangements that provide children with “frequent and continuous” contact with both parents. There is a long-standing presumption that joint custody is in the best interests of a minor child. Joint custody may be both joint physical and joint legal custody. Joint legal custody means both parents have the right to make decisions relating to the health, education and welfare of a child; joint physical custody is defined as each parent’s having “significant periods” of physical custody.

The Right of First Refusal is a court-ordered right, usually negotiated in an agreement between the parties, granting the non-custodial parent an option to care for the child or children during the custodial parent’s designated time, when the custodial parent is otherwise unavailable, instead of placing that child in the care of a third-party provider. It is a nuance, a provision within an agreement to share joint custody, that parties might otherwise spend thousands of dollars litigating.

Sounds simple enough, right? Sharing is one of the first lessons we learn as children. The concept is easy: to allow another to use or enjoy something that you possess. “I’ll give you this, if you give me that.” In highly contested custody cases however, this concept may more closely resemble a tug-of-war match.

Like business agreements, a properly drafted Right of First Refusal clause in custody cases should include all relevant terms, such as duration, offer and acceptance, exceptions, time period, transferability, etc., based on the appropriate age of the child. If well drafted, such a clause may actually increase cooperation and trust between parents, which will benefit children as they see their parents working together cooperatively. In contrast, a poorly drafted provision regarding Right of First Refusal will lead to ambiguity and may ultimately present one party with an opportunity to interfere with the other parent’s custodial time with the children.

Therein is the conundrum, while the intent is to maximize time for the benefit of the children, parties often see the request as a relinquishment of “their” time. One parent may suspect the other is setting up a case for modification of increased time and may by reluctant to offer the option. Whether you are involved in a highly contested custody battle or not, it is nevertheless best to carefully prepare and incorporate a detailed Right of First Refusal clause into your custody agreement.

Children are the greatest gift of all – society’s most valued commodity. As such, clients as parents should recognize the value in sharing and be prepared to protect it. As George Bernard Shaw aptly said, “If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas.”  If both parents work together to share their time when they are not available, it will only increase cooperation and trust between the two, which is a win for the children.

Michele Corvi is an attorney with McManis Faulkner.  Her practice focuses on all aspects of family law, including child custody and visitation, move-aways, domestic violence, child support, spousal support, valuation of property, and division of assets. For more information, please visit mcmanislaw.com.

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